State v. Mora-Lopez
| Decision Date | 01 August 2022 |
| Docket Number | 83054-6-I |
| Citation | 514 P.3d 714 |
| Parties | STATE of Washington, Appellant, v. Martin Oscar MORA-LOPEZ, Respondent. |
| Court | Washington Court of Appeals |
Kimberly Anne Thulin, Whatcom County Prosecutor's Office, Appellate Division, 311 Grand Ave. Ste. 201, Bellingham, WA, 98225-4038, for Appellant.
Christopher Mark Petroni, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Respondent.
PUBLISHED OPINION
¶1 Martin Oscar Mora-Lopez was charged with assault in the second degree and felony harassment after an alleged incident outside a homeless shelter in Bellingham. The trial court dismissed the charges with prejudice under CrR 8.3(b). The State appeals and argues that the trial court abused its discretion in finding government mismanagement, and that Mora-Lopez was prejudiced because of potential violation of his time-for-trial right under CrR 3.3.
¶2 The trial court did not abuse its discretion in determining that the State's late filing of its witness list amounted to government mismanagement. The trial court erred, however, in finding that Mora-Lopez was actually prejudiced because of a potential violation of his time-for-trial right. We reverse.
¶3 On April 10, 2021, Mora-Lopez was arrested in Whatcom County and held in the county jail in lieu of bail. According to the affidavit of probable cause, after being denied entry to the Base Camp homeless shelter, Mora-Lopez confronted Jacob Moye. Mora-Lopez used his shoulder to bump Moye with enough force to knock him back. Mora-Lopez then pulled a knife from his pocket and took several swings at Moye. It was later discovered that the jacket Moye was wearing had two large, clean cuts on the left sleeve. Mora-Lopez was charged with one count of assault in the second degree with a deadly weapon and one count of felony harassment.
¶4 On April 16, 2021, Mora-Lopez's counsel filed a notice of appearance and demand for discovery. The discovery requests included a request for the "names and addresses of persons [the State] intends to call as witnesses at hearing or trial, any written or recorded statements ... and the substance of any oral statements of such witnesses."
¶5 On April 21, 2021, the State filed and served its demand for discovery. The demand included a statement that the That same day, the State provided Mora-Lopez's counsel with discovery materials that referenced several named and unnamed individuals, including: an unnamed Base Camp staff member that called 911 to report the altercation, Base Camp employee Adrian Hartnup who described the altercation to Officer Michael Shannon, Base Camp employee Adam Estrada who showed Officers Shannon and Wubben surveillance footage of the incident, Officer Marty Otto, Officer Eric Kingery, an unnamed Based Camp staff, and unnamed CSI laboratory photographers.
¶6 On April 23, 2021, Mora-Lopez was arraigned and entered a plea of not guilty to both counts. A status/omnibus hearing was set for May 19, 2021, and a trial for June 14, 2021. On May 19, the parties agreed to continue the trial date from June 14, 2021, to June 21, 2021. On May 26, 2021, the court delayed the status/omnibus hearing for one day so that Mora-Lopez could be present.
¶7 On May 27, 2021, Mora-Lopez's counsel requested a one-week continuance without objection. The court scheduled a new status/omnibus hearing for June 3, 2021, with a new trial date of June 28, 2021. During the June 3 omnibus hearing, both parties confirmed the June 28, 2021, trial date. Consistent with Whatcom County Criminal Rule (WCCrR) 6.18(b)(3), the trial court directed the parties to submit witness lists by the end of the day.1 An omnibus order was prepared and signed by both parties and filed at the end of the day on June 3. The omnibus order instructed both parties to file a witness list "2 weeks prior to trial," which conflicted with the trial court's oral instruction that the lists be provided by the end of the day. The State did not file a witness list on June 3 or two weeks prior to trial.
¶8 On June 18, 2021, Mora-Lopez's counsel e-mailed the State's attorney informing them that they had been unsuccessful in locating the alleged victim and sought assistance setting up an interview. The e-mail also requested interviews with the police officers identified in the State's April 21, 2021 discovery responses. The State did not reply to the e-mail and no witness interviews were scheduled.
¶9 On June 21, 2021, the State served its witness list on the public defender's office—four business days before the scheduled trial. The State's list named eight witnesses—the alleged victim, Moye, Base Camp staff members Hartnup and Estrada, and police officers Shannon, Wubben, Otto, Kingery, and Murphy. The list did not include others referenced in the April 21, 2021, discovery.
¶10 On June 23, 2021, Mora-Lopez moved to exclude witnesses, or alternatively, to dismiss pursuant to CrR 8.3(b). Mora-Lopez argued that the State's failure to submit a witness list by the deadline was misconduct, and that the absence of the list led him to believe that the prosecution intended to forgo calling witnesses and rely on a surveillance video instead. Mora-Lopez also asserted that he was left with insufficient time to prepare for trial.
¶11 The trial court heard Mora-Lopez's CrR 8.3(b) motion to dismiss on June 24, 2021. The court concluded that the State's late filing of its witness list constituted government mismanagement and resulted in actual prejudice to Mora-Lopez's ability to prepare the case for trial. In support of its conclusion that Mora-Lopez was prejudiced, the trial court calculated the CrR 3.3(b) time-for-trial date as no later than July 7, 2021. As a result, the court concluded that the State's late disclosure left insufficient time for defense to prepare prior to the expiration of the time for trial. The trial court granted Mora-Lopez's CrR 8.3(b) motion and dismissed the case with prejudice. The trial court denied the State's motion for reconsideration and entered findings of fact and conclusions of law supporting its decision.
¶12 The State appeals.
¶13 The State argues that the trial court abused its discretion in dismissing the charges against Mora-Lopez under CrR 8.3(b). The State asserts that the trial court erred both in determining that there was government mismanagement and that Mora-Lopez was actually prejudiced. We disagree with the State and agree with the trial court that the State committed government misconduct. We agree with the State, however, that Mora-Lopez was not actually prejudiced.
¶14 CrR 8.3(b) addresses dismissal of criminal charges based on arbitrary government acts or misconduct:
The court, in furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.
"The dismissal of charges under CrR 8.3(b) is an ‘extraordinary remedy.’ " State v. Kone, 165 Wash. App. 420, 432, 266 P.3d 916 (2011) (quoting State v. Rohrich, 149 Wash.2d 647, 658, 71 P.3d 638 (2003) ). A trial court may only dismiss charges under CrR 8.3(b) if the defendant shows by a preponderance of the evidence (1) arbitrary action or governmental misconduct and (2) prejudice affecting the defendant's right to a fair trial. Rohrich, 149 Wash.2d at 654, 71 P.3d 638. Kone, 165 Wash. App. at 433, 266 P.3d 916. The defendant, however, "must show actual prejudice, not merely speculative prejudice affected his right to a fair trial." Kone, 165 Wash. App. at 433, 266 P.3d 916.
¶15 When we review a trial court's dismissal of charges under CrR 8.3 we "must ask whether the trial court's conclusion that both elements were satisfied was a ‘manifest abuse of discretion.’ " Rohrich, 149 Wash.2d at 654, 71 P.3d 638 (emphasis added) (quoting State v. Michielli, 132 Wash.2d 229, 240, 937 P.2d 587 (1997) ). A trial court's decision is an abuse of discretion if it is "manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons." State v. Blackwell, 120 Wash.2d 822, 830, 845 P.2d 1017 (1993). A decision is untenable "if it results from applying the wrong legal standard or is unsupported by the record." State v. Salgado-Mendoza, 189 Wash.2d 420, 427, 403 P.3d 45 (2017).
¶16 The State first raises several arguments in support of its claim that the trial court erred in concluding that there was government misconduct.
¶17 After reviewing the evidence, the trial court concluded that the State had committed government misconduct. The court stated:
Government misconduct need not be of an evil or dishonest nature; simple mismanagement is enough. Here, the State mismanaged its case by failing to file and serve a witness list in a timely manner as required by CrR 4.7, CrR 4.5, Whatcom County Local Court Rule WCCrR 6.18(b)(3), and the oral ruling of the court; failing to communicate with its witnesses regarding trial availability in a timely manner; and failing to attempt to make its witnesses available for defense interviews.
¶18 We agree with the State that substantial evidence does not support the trial court's conclusion that the prosecutor admitted that he had not communicated with the alleged victim-witness. The prosecutor did not make this admission. Rather, he stated, Thus, the record supports...
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